Doe v. Ayers, 2015 WL 1427578 (C.A. 9)

Another case written by a 9th Circuit panel reversing jury imposition of the death  penalty phase of a state court trial. Unsurprisingly, the judge who wrote the 39 page opinion – including footnotes – has never affirmed a capital case and was allegedly “randomly” selected..  The judge, “randomly” selected in a disproportionate number of cases on death penalties, has been reversed by the Supreme Court more than any judge in the country. Nor has the second judge on the panel ever affirmed a death penalty case. If the case is not reheard en banc, the Supreme Court will hear it.  And reverse.

The court starts with the observation that the procedural history of the case began in 2005, ten years ago, with the Supreme Court in reversing the 9th Circuit and ordering remand.  Without exploring the habeas corpus arguments, apparently Doe still has another pending case in addition to the current case.

In a curious and probably unlawful act, the panel deleted captions naming the district court judge and the defendant -petitioner- himself.  This hypocrisy will also be challenged. There is no authority for this, or at least the court cites none.

The facts of the brutal murder are horrific, and the judge writes that all murders are in that category. But, he writes, in capital cases the crime must be “egregious.” to warrant the death penalty.  There is no citation for this disgusting and insensitive characterization of raping and murdering a handcuffed woman in this case.

The merits of this case and the penalty were confirmed  by the California Supreme Court and the federal court district judge, but the petitioner filed his petition before Congressional enactment of AEDPA enabling the 9th Circuit panel to evade the rules of current jurisprudence-in which the court has repeatedly been reversed by the Supreme Court .  As noted in the next post, the 9th Circuit is finished with granting habeas corpus in state cases filed after 1996-the year Congress enacted AEDPA.

The court panel concludes that the attorney who tried this case did so “ineffectively” but insufficiently to warrant reversal on the merits.  On the penalty phase the court writes endlessly on the lack of experience and the mistakes of appointed counsel.  Curiously, in a subsequent hearing this lawyer agreed he made mistakes.  Why did the trial court, monitoring the case, not sense these mistakes and inquire of counsel of the course he was taking?  In any event, this disclosure by the attorney almost suggests he made these mistakes on purpose to preserve an appeal of a guilty client.

Without reviewing the horrible, but not “egregious,” facts, any jury would have imposed. the death penalty regardless of any mistakes by counsel.  The evidence of guilt is overwhelming and the mitigating evidence is the usual defenses.

Note: To read a more sensible and less theoretical death penalty case, see Elmore v. Sinclair, 2015 WL 1447149.

Woods v. Donald, 135 S.Ct. 1372 (2015)

Woods v. Donald is a 6th Circuit case on certiorari, but  the Supreme Court has now indirectly prevented the 9th Circuit from circumventing state courts in habeas corpus cases.  The facts in the case are relatively unimportant; it is the Supreme Court language that applies to a challenge by petitioner of ineffective assistance of counsel. Under the familiar 28 U.S.C.2254  (AEDPA) statute a federal court can only order habeas corpus if a state court decision on the merits is “contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court …” The 9th Circuit has repeatedly evaded this statute and reversed state court decisions invoking a direct review procedure rather than a collateral one.
Here is the Supreme Court language in Woods: “AEDPA’s standard is intentionally‘ “difficult to meet,’ White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (quoting Metrish v. Lancaster, 133 S.Ct. 1781, 1786 (2013). We have explained that ‘clearly established Federal law’ for purposes of s. 2254 (d)(1) includes only the holdings, as opposed to the dicta, of this Court’s decisions.’ White, 134 S.Ct @ 1702 . And an ‘unreasonable application of’ those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.’ 13 4 S.Ct. @ 1792 (same). To satisfy this high bar, a habeas petitioner is required to ‘show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement, Harrington v. Richter, 131 S.Ct. 770 (2011). Adherence to these principles serves important interests of federalism and comity. AEDPA’s requirements reflect a presumption that state courts know and follow the law.’  Woodford v. Visciotti 123 S.Ct. 357 (2011). When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong. Federal habeas review thus exists as ‘a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal, Harrington v. Viscotti, supra. This is especially true for claims of ineffective assistance of counsel, where AEDPA review must be ‘doubly deferential’  in order to afford ‘both the state court and the defense attorney the benefit of the doubt.’ Burt v. Titlow, 134 S.Ct. 10, 13 (2013)  (quoting Cullen v. Pinholster, 131 S.Ct.1388 (2011).”
The Court continues to expand these rules by instructing ederal courts to dentify a Supreme Court case relevant to the claimant’s challenge.  In cases alleging ineffective assistance of counsel, the ruling is doubly deferential (as in Woods v. Donald’s claim.)   The Court added additional language on according state courts comity and federalism, and issued a clear warning to the 9th Circuit that it discontinue its reversal of state court cases on habeas corpus.


9th Cir. Recent Cases in Supreme Court 2014-2015 Term

At  the end of the year 2014 we begin reviewing all 9th Circuit cases reversed by the Supreme Court during the 2015 calendar year. The end of the calendar year does not coincide with the Supreme Court term which began in October, 2014 and concludes in July, 2015. In January, 2015 the current term will continue. So, we include all the cases in 2014-2015 in the current term.

All the cases decided during the year from January 1, 2014  to January 1, 2015 cited here are in the Blog for further discussion.


Habeas Corpus: The Supreme Court gave the 9th Circuit another harsh lesson on habeas corpus in a 6th Circuit case.  (This Circuit is trying to match the 9th Circuit reversal record); Woods v. Donald, 2015 WL 1400852.  See the Blog for discussion.

Habeas Corpus: A week before the current term of the Supreme Court had even begun, the Justices reversed the 9th Circuit; Scialabba v. de De Osorio, 134 S.Ct. 2191 (2014). When the current term opened on October 6, 2014 the Court again reversed the 9th Circuit in a unanimous per curiam opinion. Lopez v. Smith, 135 S.Ct. 1 (2014).The overwhelming evidence in Lopez v. Smith cast no doubt he had killed his wife in their house. Police found Smith’s DNA evidence: on the body of the dead victim; on the lethal weapon; on jewelry removed from the house where the murder occurred concealed in the trunk of his car. A criminal evidence expert testified the ransacked house was a staged robbery. The jury rendered a guilty verdict of murder.

At the conclusion of the prosecution case, the prosecutor had obtained a trial court approved jury instruction defining the crime of aiding and abetting in addition to first degree murder instructions already submitted. Defense counsel objected, arguing he had no notice of the change in prosecution theory. All California appellate courts have rejected this argument, as did the trial court and Court of Appeal in this case, on grounds anyone who aids and abets is as guilty as the principle. The 9th Circuit panel on habeas review disagreed and overruled the California courts.

In Lopez v. Smith, and the cases cited above, the 9th Circuit has repeatedly evaded the restrictions imposed on federal habeas corpus jurisdiction mandated by the AntiTerrorism and Effective Death Penalty Act (AEDPA; 28 U.S.C. 2254). Federal law allows habeas relief only “if the state court decision was contrary to, or involved, an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. 2254 (d) (1). Parker v. Mathews, 132 S.Ct. 2148 (2012)..

AEDPA also requires federal courts “deference” to state appellate courts in habeas proceedings. The 9th Circuit panel in Lopez cited only their own precedents, and overruled the conviction on grounds the state appellate court opinion “unreasonable.” The Supreme Court reversed, concluding the 9th Circuit had “time and again” misinterpreted the facts and Supreme Court law under AEDPA and ignored deference to state courts.

               Lopez v. Smith is a heavily cited per curiam opinion without footnotes, but the dissenting opinion in Deck v. Jenkins lists an embarrassing number of Supreme Court cases reversing the 9th Circuit for failing to comply with AEDPA. In one Supreme Court case a Justice singled out the 9th Circuit for repeated violations of AEDPA committed by panels’ misapplication of habeas corpus precedent. In addition, the 9th Circuit has ignored or evaded almost every state court death penalty case for the last decade on habeas corpus grounds despite California Supreme Court affirmation on the merits and the penalty.


Immigration: De Osorio v Mayorkas, 134 S.Ct. 2191 (2014).  The district court had originally upheld a BIA decision interpreting an immigration statute and was affirmed on appeal by the 9th Circuit panel.  Rehearing was granted en banc and reversed; 695 F.3d 1003  (9th Cir.) by the usual judges.  Cert. to the Supreme Court and the en banc decision reversed. In a tiny one sentence order the 9th Circuit on remand affirmed the district court.

Immigration: Aragon-Salazar v. Holder, 769 F3d 699 (9th Cir. 2014. Petitioner appealed the BIA decision not to allow him to file cancellation of removal because he lied subsequent to his application and ineligible under the relevant statute. The 2-1 majority held the statute ambiguous as to when it was timely. The dissent skewers this reasoning.(Oct. 29, 2014).

Immigration: Kerry v. Din, 718 F.3d 856 (9th Cir 2014). Petitioner was denied a visa based on security concerns.  The 2-1 majority decided the court had judicial review of this administrative decision issued by the Secretary of State.  Here is the dissent: “The majority opinion acknowledges the doctrine of consular [State Dept.] nonreviewability and the “highly constrained” nature of our judicial review of the denial of a visa, see Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir.2008), but in practice it fails to accept that doctrine and act within that constraint. Instead, assuming that judicial review must be more robust, it imposes upon the Government an obligation to provide information about a visa denial that, by statute, the government is specifically not required to provide when it denies a visa based on concerns for national security or terrorism. I respectfully dissent.”

Petition for cert granted: 135 S.Ct. 44




Wilkerson v. Wheeler, 772 F.3d 834 (9th Cir. 2015)

Only in the 9th Circuit can a panel ignore the pleadings and invent a rule never sought  in the Complaint or argued at trial. Wilkerson, a prison inmate under life sentence for crimes not described by the panel, filed a 42 U.S.1983 case against state correction officers alleging claims of questionable constitutional dimension. He had previously filed an administrative complaint dismissed by state prison officials; his state habeas corpus petition was denied; he then filed his 1983 complaint in U.S. district court.  At trial, the jury denied his allegations. Wilkerson appealed to the 9th Circuit.

Prison Corrections officers testified at trial they informed Wilkerson to return to his cell after he had copied some of his documents.  He refused, and officers were compelled to physically restrain him in compliance with their order.  Under the Heck v. Humphrey case, 512 U.S. 477 (1944) an inmate cannot testify in a 1983 case if a jury decision would render an attack on his sentence or duration of imprisonment.  But, according to the 9th Circuit, Wilkerson had been sentenced for life and therefore the Heck case inapplicable.  In other words, an inmate sentenced for life can file a 1983 case without restrictions imposed by 1983 Supreme Court law.

The 9th Circuit panel recited the officer’s testimony that Wilkerson refused to obey their order to return  to his cell, and he kicked and twisted.  The district court had denied Wilkerson his testimony under the Heck doctrine, and, in effect, the officer’s testimony was uncontradicted.  The 9th Circuit panel said the Heck rule prevented Wilkerson from testifying to the facts, but he could allege legal error.  How you allege legal error without the facts is an interesting question.

So, the panel said the district court judge had not instructed the jury correctly and that  the error is a legal question, not a factual issue.  Had Wilkerson testified that he offered no physical resistance, said the panel, the jury  might have found the officers used excessive force. Therefore, the judge should have modified the jury instruction to say the conduct Wilkerson engaged in for 1983 purposes did not have to necessarily be physical (according to Wilkerson.). That is the legal error. Oh.

Not only is this academic hairsplitting absurd, this jury instruction was never submitted,  argued or briefed by Wilkerson. He objected to the Heck rule that he could not testify but made no request for the district court to explain that resistance may not necessarily be confined to physical evidence.

Here is a case of a life sentence imposed prisoner whose administrative complaint in prison against the correction officers was denied; his habeas corpus petition denied; his trial lost, has now added to the time it took to have a jury originally find him guilty (the panel does not describe the crimes he committed to warrant a life sentence.)  The 9th Circuit has reversed the district court in this 1983 case, and now the judge must conduct another 1983 trial with some kind of modified jury instruction.  A frivolous complaint matched to a frivolous decision. Congress enacted the Prison Reform Litigation Act (42 U.S.C. 1997) to prevent just this kind of judicial verbal manipulation.

Mann v. Ryan, 774 F.3d 1203 (9th Cir. 2014)

Another death penalty case reversed by a 9th Circuit panel in a 2-1 majority. This case qualifies as one of the worst decisions ever rendered  by a 9th Circuit panel and warrants an en banc hearing.  If denied, when the case on certiorari goes to the Supreme Court, their reversal language will exceed any other in their constant chastisement of the 9th Circuit.  This case does not even come close to the repeated explanation of federal habeas corpus authority issued by the Supreme Court.

This case is a 1989 execution planned by Mann, and he executed it by killing two men inside a house. Mann and another person scrupulously cleaned and renovated the house where the execution occurred, both destroyed their weapons and buried the dead bodies in a remote location.  The former girlfriend of Mann was present during the crime .Later, she reported the crime to police and testified at the trial.  The jury convicted Mann, who did not testify, and the judge imposed the death sentence.

Even the majority opinion demonstrates excellent representation by defense counsel.  At the sentencing hearing, counsel had introduced more than enough mitigation testimony at the trial, including a psychologist who testified Mann’s  head injury suffered as an adolescent did not affect his judgment.  Evidence that Mann thoroughly cleaned the house of any incriminating evidence, destroyed the weapons, and dumped the bodies in a remote area hardly suggests any cognitive impairment.

The Arizona Supreme Court affirmed the merits and sentence. The federal district court affirmed.  On appeal to the 9th Circuit, Mann alleged the usual “ineffective assistance of counsel” argument -so commonly used in the 9th Circuit the judges refer to it by its acronym; IAOC).  At an evidentiary hearing held after trial, the defense lawyer testified he considered recusing himself because the defendant wanted to lie at the trial, and counsel would not engage in perjury.  Further, Mann  had previous convictions which would make impeachment of his testimony even worse.  There is not a shred of mitigating testimony that would have changed the judge’s sentence.

Not according to the 9th Circuit panel, citing Strickland v. Washington, 466 U.S. 668 (1984) and ignoring all the Supreme Court habeas corpus jurisprudence demanding the 9th Circuit to respect AEDPA and not to rule on collateral review as you would on direct review. The test: to reverse on  habeas corpus: the federal court must find the state decision had been the result of an incompetent state judicial system.  The rest of the Mann opinion cites alleged failures of counsel to get medical records, interview witnesses, and other defense tools.

According to the panel, the sentencing judge mistakenly applied the Strickland standard as “clearly established federal law.”  The author of the Mann opinion should have read all the Supreme Court cases on the double deference accorded to state court decisions required to violate Strickland.

No lawyer in the 9th Circuit can escape the obvious fact that the death penalty will never be invoked no matter what it takes – including misinterpretation of the law as evidenced by the judicial manipulation in Schad v. Ryan.

For confirmation of this observation, read the dissent.

Some day, the Supreme Court will forbid federal habeas corpus in the 9th Circuit just as the Justices did in state search and seizure and parole cases. Ninth Circuit  panels have issued a  constant stream of opinions based on ineffective assistance of counsel when the court cannot find legal error.

Here is what the Supreme Court told the 6th Circuit about habeas corpus in Burt v.Titlow, 134 S.Ct. 10 (2013)   “AEDPA instructs that, when a federal habeas petitioner challenges the factual basis for a prior state-court decision rejecting a claim, the federal court may overturn the state court’s decision only if it was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding;” 28 U.S.C. § 2254(d)(2). The prisoner bears the burden of rebutting the state court’s factual findings “by clear and convincing evidence.” § 2254(e)(1). We have not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), and we need not do so here. See Wood v. Allen, 558 U.S. 290, 293, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010). For present purposes, it is enough to reiterate “that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Id., at 301, 130 S.Ct. 841. AEDPA likewise imposes a highly deferential standard for reviewing claims of legal error by the state courts: A writ of habeas corpus may issue only if the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by” this Court. § 2254(d)(1).

[3] Headnote Citing References[4] Headnote Citing References AEDPA recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights. “[T]he States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. Under this system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States.” Tafflin v. Levitt, 493 U.S. 455, 458, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990). This principle applies to claimed violations of constitutional, as well as statutory, rights. See Trainor v. Hernandez, 431 U.S. 434, 443, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). Indeed, “state courts have the solemn responsibility equally with the federal courts to safeguard constitutional rights,” and this Court has refused to sanction any decision that would “reflec[t] negatively upon [a] state court’s ability to do so.” Ibid. (internal quotation marks omitted). Especially where a case involves such a common claim as ineffective assistance of counsel under Strickland—a claim state courts have now adjudicated in countless criminal cases for nearly 30 years—“there is no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned … than his neighbor in the state courthouse.” Stone v. Powell, 428 U.S. 465, 494, n. 35, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (internal quotation marks omitted). [Headnote Citing ReferencesRecognizing the duty and ability of our state-court colleagues to adjudicate *16 claims of constitutional wrong, AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court. AEDPA requires “a state prisoner [to] show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error … beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. ––––, ––––, 131 S.Ct. 770, 786–787, 178 L.Ed.2d 624 (2011). “If this standard is difficult to meet”—and it is—“that is because it was meant to be.” Id., at ––––, 131 S.Ct., at 786. We will not lightly conclude that a State’s criminal justice system has experienced the “extreme malfunctio[n]” for which federal habeas relief is the remedy. Id., at ––––, 131 S.Ct., at 786 (internal quotation marks omitted).






Ryan v. Henry, 775 F.3d 1112 (9th Cir. 2014)

The Supreme Court reverses the 9th Circuit more than any other federal court, and the current term will duplicate that record.  But in the 9th Circuit’s latest case some of the “usual suspects” try another device to avoid the death penalty as they did in Schad v. Ryan.  That case is an embarrassing rendition of “appellate abuse” described by the Supreme Court.  The 9th Circuit panel ignored the mandate of the Supreme Court denial of Schad’s petition for certiorari.  Instead, the 9th Circuit panel returned his case to the district court for further hearings. That 9th Circuit decision is not a case of negligence; it was a defiance of the Supreme Court intentionally rendered.

The 9th Circuit has done it again.  Ryan v. Henry is willful appellate defiance of federal rules of procedure.  The mind numbing rendition of the procedural history of the case is an attempt to once again subvert a death penalty decision. The Supreme Court had denied Henry’s petition for certiorari on an issue of alleged structural error in the trial court and his appeal denied by a 9th Circuit panel. Henry petitioned for a rehearing of  the result and sought reconsideration of the en banc hearing.

Granted- in violation of 9th Circuit rules- the panel reheard the petition in conjunction with a related case.  In a final decision by the Chief Judge, he denied the petition to stay the proceedings until the related case  was decided. The unrelated case (with similar issues) was consolidated, argued and the court ruled the stay in Henry was decided.

In this thirty year old case, Henry only argued the penalty.  Factual innocence was never an issue.

Immigration Cases

Because the 9th Circuit reverses so many of the immigration (BIA) cases, a few examples will explain the absurd excuses the court accepts to allow people to remain in the United States.  Instead of requiring an entrant to establish the right to live in the United States, the 9th Circuit imposes the burden of proof to exclude or deport someone on the government.

U.S. v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014): Raya-Vaca was deported 6 times from the United States and was now in expedited removal proceedings.  According to the 9th Circuit, the IJ did not inform Raya- Vaca of the proceedings filed against him,  and that failure violates Due Process. Raya-Vaca, having been deported 6 times, should have little doubt of his awareness of the proceedings and the consequences . ” No”, said the court.  Due Process occurred, the all – purpose 9th Circuit rule that knows no boundaries and invoked by the 9th Circuit to impose public policy.

Almanza v. Holder, 771 F.3d 1184 (9th Cir 2014): Almanza was convicted under California Vehicle Code 10851(a) (permanently or temporarily taking a motor vehicle from the owner without permission).  The statute is in the alternative and the record did not reflect which kind of theft was applicable to Almanza.  The code section is one of moral turpitude for immigration purposes and subject to deportation of an alien if the vehicular theft is “permanent,”  but not if “temporary.”  But the record does not show which alternative.  So, the 9th Circuit panel remanded to the IJ to find out.

Why a remand? Let the alien submit the record to establish the theft was “temporary.” The lawyer probably didn’t know the procedure and the 9th Circuit panel invented its own rule and provided the explanation.
Talk about academic hair splitting.  Why should an illegal alien commit a crime of theft and stay in this country based on statutory quibble or without furnishing the court with the record?

For other immigration cases go to earlier pages.

Frudden v. Pilling, 742 F.3d 1199 (9th Cir. 2014)

Only the 9th Circuit writes a decision in this case that a court would consider, and resolution could have been decided in two paragraphs. In Frudden v. Pilling the plaintiffs filed a Complaint alleging their objections to a local elementary school that had decided to require a dress code for all students.  Imprinted on the shirts read the words “Tomorrow’s Leaders”, a photo of the Gophers (apparently the school motto), and an exception for students wearing the shirts who were members of the Boy Scouts or the Girl Scouts.  The plaintiff’s Complaint alleges “Tomorrow’s Followers” were excluded.  Viewpoint discrimination and not content neutral.

First, the 9th Circuit panel listed all the parental failures in their drive for a dress code at the elementary school as though they should have complied with federal election laws. Then the panel launched into a discussion whether the Complaint violated the First Amendment, contending the motto (“Tomorrow’s Leaders”) imprinted on the shirts was not content neutral, and the emphasis on Boy Scouts and Girl Scouts exclusion from wearing the shirts discriminatory. The panel remanded the case to the district court for the plaintiff to amend the Complaint and the district court to do something.

The distinct court read the pleadings and the record and wondered who was doing what.  In the plaintiff’s oral argument they conceded the motto was acceptable and only wanted other national youth organizations exempted from wearing the shirts in addition to the Scouts. The district court wondered why this case came back from the 9th Circuit on issues not in dispute and unrelated to the appellate record.  The defendants moved to clarify the record written in the 9th Circuit opinion.  Motion to clarify granted. Apparently there is no dispute at all, or if there is one, the 9th Circuit panel can explain if the parties elect to appeal the district court clarifying decision.  The elementary school students will understand the First Amendment strict scrutiny test applied by the 9th Circuit panel in this exciting case.

All the parties had to do was sit down and negotiate.  Not one of the 9th Circuit panel suggested they do that.

Maricopa Co., Arizona v. Angel Valenzuela, 135 S.Ct. 428 (2014)

The 9th Circuit has stymied every attempt by the State of Arizona to identify and return illegal aliens who illegally entered this country.  If the federal government, which insists on unqualified immigration jurisdiction, would adopt Arizona statutes the immigrant issue would be resolved.  In Maricopa County 8 years ago the citizens enacted a statute by referendum denying bail for persons arrested and detained for determination of legal status.  Obviously an illegal alien is likely to flee after arrest and incarceration if bail is unnecessary.  Not according to a 9th Circuit panel denying enforcement of the Arizona statute on an en banc hearing reversing the three judge panel that had enforced the law; 770 F.3d 772 (2014).

The naiveté of this court is incomparable.  Does anyone think a person in detention will not flee as soon as he is released because of his illegal status in the country?  The 9th Circuit court, using the old worn out, all purpose policy excuse of the Due Process Clause, invalidated the statute. The County sought a stay of the order but the Supreme Court denied  the petition. Justice Thomas commented:.

Statement of Justice THOMAS, with whom Justice SCALIA joins, respecting the denial of the application for a stay.

“Petitioner [Maricopa Co.] asks us to stay a judgment of the United States Court Appeals for the Ninth Circuit holding unconstitutional an amendment to the Arizona Constitution that the State’s citizens approved overwhelmingly in a referendum eight years ago. I join my colleagues in denying this application only because there appears to be no “reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari.” Hollingsworth v. Perry, 558 U.S. 183, 190, 130 S.Ct. 705, 175 L.Ed.2d 657 (2010) (per curiam). That is unfortunate.

We have recognized a strong presumption in favor of granting writs of certiorari to review decisions of lower courts holding federal statutes unconstitutional. See United States v. Bajakajian, 524 U.S. 321, 327, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998); United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). States deserve no less consideration. See Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1177, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996) (SCALIA, J., dissenting from denial of certiorari: (“This decision is questionable enough that we should, since the invalidation of state law is at issue, accord review”). Indeed, we often review decision striking down state laws, even in the absence of a disagreement among lower courts. See, e.g., Hollingsworth v. Perry, 570 U.S. ––––, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013); Cook v. Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001); Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999); Renne v. Geary, 501 U.S. 312, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991); Massachusetts v. Oakes, 491 U.S. 576, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989). But for reasons that escape me, we have not done so with any consistency, especially in recent months. See, e.g., Herbert v. Kitchen, ––– U.S. ––––, 135 S.Ct. 265, ––– L.Ed.2d –––– (2014); Smith v. Bishop, ––– U.S. ––––, 135 S.Ct. 271, ––– L.Ed.2d –––– (2014); Rainey v. Bostic, ––– U.S. ––––, 135 S.Ct. 286, ––– L.Ed.2d –––– (2014); Walker v. Wolf, ––– U.S. ––––, 135 S.Ct. 316, ––– L.Ed.2d –––– (2014); see also Otter v. Latta, ––– U.S. ––––, 135 S.Ct. 345, –––L.Ed.2d –––– (2014) (denying a stay); Parnell v. Hamby, ––– U.S. ––––, 135 S.Ct. 399, ––– L.Ed.2d –––– (2014) (same). At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state constitutional amendment. Of course, the Court has yet to act on a petition for writ of certiorari in this matter, and I hope my prediction about whether that petition will be granted proves wrong. Our recent practice, however, gives me little reason to be optimistic.”

Justice Thomas is correct.  The referendum was enacted by Arizona voters contingent on state sovereignty.  The Supreme Court may understandably agree the federal government exercises jurisdiction on who may enter the country, but once a person is inside country borders state sovereignty exists, and the  people decide requirements for residence.


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Taylor v. Cate, 772 F.3d 842 (9th Cir.2014)

Several judges on the 9th Circuit who have never tried a criminal case apparently are completely unaware of the cost and injustice of some of their opinions. The author of Taylor is in that group.

Taylor was convicted in state court of shooting and killing a store clerk in a two-man robbery.  The prosecutor could not establish which of the two men did the actual shooting and informed the jury the non shooter was an aider and abettor and as guilty as the principle.  The jury found Taylor was the shooter, and the court sentenced him as the principle.

Somehow, the DA and police subsequently discovered Taylor was not the shooter and the jury had made a mistake.  This commendable prosecutorial investigation was administratively opened and eventually the prosecutor and trial judge agreed to a reduced sentence. Taylor filed this procedure for review in the California Court of Appeal on grounds of erroneous sentencing, and on denial by the court he sought review in the California Supreme Court  The Supreme Court in its order referred only to resentencing, not the grounds Taylor alleged as “not guilty” as a principle. Remanded to the Court of Appeal.

The California Court of Appeal on remand affirmed the judgment of the trial court; the California Supreme Court denied review; the federal magistrate denied the petition for habeas corpus in district court.  The 9th Circuit panel granted the petition in an incomprehensible opinion.  When 9th Circuit judges want to reach their ideological opinions, they find their way and always for the defendant.  Taylor v. Cate is deja vu all over again.

According to the 9th Circuit majority panel, the California Supreme Court order only applied to resentencing, not Taylor’s claim on the merits that the jury had not found him guilty as an aider and abettor, avoiding AEDPA, and on remand the California Court of Appeal held only the resentencing was approved. Now the panel could review de novo.

What better and fairer resolution of sentence reduction could be found anywhere except in the 9th Circuit?  The panel ruled the jury had never convicted Taylor as an aider and abettor and he must be retried.  In the meantime, the other robber was found not guilty. This case was tried in 1987 and now both men are free unless the prosecutor can find witnesses to retry Taylor as an aider and abettor. He would be sentenced, if found guilty, to the same sentence the DA recommended and the trial court approved.The defendant was found guilty as a principle but the sentence is higher than for an aider and abettor.  Both are treated equally for purposes of conviction, and Taylor should be sentenced as an aider and abettor. Which the trial court did.

The majority panel writes that the sentencing error is not harmless and deprives the defendant of a trial as an aider and abettor under the Sixth Amendment and Due Process Clause.  The author of the panel cited a 9th Circuit case reversed by the Supreme Court in support of her decision.

The dissent seeks an equitable decision.  If the DA cannot re try this 1987 case because witnesses cannot be found, both defendants go free.  What an injustice. The trial court understood.  The DA was oriented to justice in agreeing to a reduced sentence.  All the California courts and the federal court agreed. En banc time, and if denied, petition for cert. alleging another 9th Circuit error to add to their record.